Monday, September 12, 2011

An Open Letter to the Judiciary – Can We Talk? (Part One)




An open letter posted by an Anonymous Guest Blogger (Not a hacker from Anonymous) appearing on Ralph Losey's e-Discovery Team Blog.

This very detailed open provides some suggestions to the judiciary, as discussions to possible revise the Federal Rules of Civil Procedure (Again) are underway.

This article provides very interesting commentary from an unnamed partner in a national law firm.  Some of the topics discussed include the following:

Proposed solutions as established by judicial decisions and by the language of Rule 26(c) itself.

A. The Discovery Phase of Litigation Can be Conducted in Private without Implicating the “Public’s Right to Know”;
B. Rule 26(c) Provides Authority to Allow For Expansive “Umbrella” Protective Orders to Limit Burden of Undue Expense
The open letter goes on to state, "In other words, the courts should recognize because: a) there is no right of public access either by common law or under the First Amendment to documents exchanged in discovery; b) discovery is considered “private” and not part of the public aspect of the judicial process; c) the vast majority of documents produced in discovery will never be presented in court by way of motion or trial exhibit; d) companies have a legitimate interest in protecting their business confidential documents from dissemination to the public, competitors or the press; and e) the time and cost necessary to painstakingly review the extraordinary volume of documents that accompany ESI discovery is extremely burdensome, a producing party should be permitted to treat all documents produced as “confidential” at the on-set, with specific ultimate decisions made about confidentiality later in the process when a much smaller group of documents are set to be submitted in court for consideration on some issue. Moreover, such a procedure is permissible under Rule 26(c) given that it allows for protective orders to be issued to protect a party from “undue burden or expense” separately and apart from concerns as to whether a document that will never see the light of day in court actually meets the criteria to sustain a confidentiality designation. Thus, the “good cause” analysis should move away from considerations about public access to the judicial process – as none exists vis-à-vis the discovery process – and instead should focus on the costs and burdens associated with ESI discovery. This is not, however, what the courts have done."

This is a very interesting read, and covers many issues of concern regarding how ESI should be handled in litigation...and as the title of the letter states, it is only part 1.  I look forward to further comments from this Mr. Losey's anonymous guest blogger.




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